84 Lumber Company v. F.H. Paschen, S.N. Nielsen & Associates, LLC et al

Filing 318

ORDER AND REASONS granting 314 Motion to Dismiss. For the foregoing reasons, the Court GRANTS Paschen's motion for voluntary dismissal. Paschen's claim against J&A is DISMISSED WITHOUT PREJUDICE. Signed by Judge Sarah S. Vance on 1/19/2018. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
84 LUMBER COMPANY
VERSUS

CIVIL ACTION
NO. 12-1748

F.H. PASCHEN, S.N. NIELSEN &
ASSOCIATES, LLC, ET AL.

SECTION “R” (5)

ORDER AND REASONS
Defendant and third-party plaintiff F. H. Paschen, S. N. Nielsen &
Associates, LLC moves for voluntary dismissal without prejudice of its claim
against J&A Construction Management Resources Co. Inc.1

For the

following reasons, the Court grants the motion.

I.

BACKGROUND
This case arises out of two school construction projects in Louisiana. 2

Defendant F.H. Paschen, S.N. Nielsen & Associates, LLC (Paschen) entered
into contracts to build an elementary school at the Mildred Osborne School
in New Orleans (Osborne Project) and a high school in South Plaquemines
Parish (South Plaquemines Project).3 On both projects, Paschen was the

1
2
3

R. Doc. 314.
R. Doc. 28 at 2-3 ¶ 5.
Id. at 3 ¶ 5.

general contractor.4 Paschen subcontracted a portion of both projects to
J&A Construction Management Resources Company, Inc. (J&A). 5 J&A in
turn subcontracted a portion of its work on both projects to 84 Lumber
Company.6
On July 5, 2012, 84 Lumber sued Paschen and other defendants,
alleging that 84 Lumber was not paid in full for work performed on the
Osborne and South Plaquemines Projects. 7 Paschen answered 84 Lumber’s
complaint and added J&A as a third-party defendant, asserting a breach of
contract claim against it. 8 J&A answered Paschen’s third-party complaint
and filed a breach of contract counterclaim against Paschen. 9
The Court has since dismissed J&A’s counterclaim against Paschen, 10
as well as all other claims in this case apart from Paschen’s claim against
J&A. Trial on Paschen’s claim is set for January 29. Paschen now moves for
voluntary dismissal, without prejudice, of its claim against J&A. J&A does
not oppose Paschen’s motion, but requests dismissal with prejudice. 11

4
5
6
7
8
9
10
11

Id. at 2 ¶ 5.
Id. at 3 ¶ 7.
Id. at 3 ¶ 9.
R. Doc. 1.
R. Doc. 25.
R. Doc. 39.
R. Doc. 294.
R. Doc. 316.
2

II.

DISCUSSION
Federal Rule of Civil Procedure 41(a)(2) permits a plaintiff to dismiss

her claims “only by court order, on terms that the court considers proper.”12
“[M]otions for voluntary dismissal should be freely granted unless the nonmoving party will suffer some plain legal prejudice other than the mere
prospect of a second lawsuit.” Elbaor v. Tripath Imaging, Inc., 279 F.3d 314,
317 (5th Cir. 2002). But “[w]here the plaintiff does not seek dismissal until
a late stage and the defendants have exerted significant time and effort, the
district court may, in its discretion, refuse to grant a voluntary dismissal.”
Hartford Accident & Indem. Co. v. Costa Lines Cargo Servs., Inc., 903 F.2d
352, 360 (5th Cir. 1990).
The Court finds that J&A will not suffer legal prejudice by Paschen’s
voluntary dismissal without prejudice. First, J&A does not even argue that
it will suffer prejudice if the Court grants Paschen’s motion. Indeed, J&A
states that it supports the motion, and merely requests that dismissal be with
prejudice.13 Second, while trial is scheduled on January 29, J&A has not filed
any substantive motions on Paschen’s claim against it. Moreover, J&A does
not assert that it has expended considerable resources defending against

Paschen cannot dismiss its claim by right under Rule 41(a)(1) because
J&A has filed an answer and has not stipulated to dismissal.
13
R. Doc. 316.
3
12

Paschen’s claim. Cf. Hartford Accident, 903 F.2d at 360 (affirming denial
when plaintiff moved for dismissal after “defendants expended significant
time and effort litigating” action). Nor does it appear that J&A will lose any
legal defenses if Paschen renews its breach of contract claim against it. Cf.
Elbaor, 279 F.3d at 318-19 (noting that loss of a statute of limitations defense
constitutes legal prejudice).

III. CONCLUSION
For the foregoing reasons, the Court GRANTS Paschen’s motion for
voluntary dismissal. Paschen’s claim against J&A is DISMISSED WITHOUT
PREJUDICE.

19th
New Orleans, Louisiana, this _____ day of January, 2018.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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